129 A. 585 | Pa. | 1925
Argued May 5, 1925. The William Penn Highway (herein called the highway) extends from Bethlehem to Easton and is intersected, practically at right angles, by a public road, called Kemmerer Street. The Lehigh Valley Transit Company, defendant, has a single-track electric street railway located on private property to the north of and adjoining the highway and crossing Kemmerer Street a few feet therefrom. Mrs. Laura Barton, the plaintiff, lived on Kemmerer Street and, while returning from Bethlehem on July 12, 1922, drove her Ford sedan east along the highway until she turned north into Kemmerer Street, where, in crossing defendant's track, she was struck by one of its eastbound trolley cars (herein called the car), and this suit, brought to recover for her personal injuries and the value of the sedan which was wrecked, resulted in a verdict and judgment in her favor, and defendant has appealed.
As there was evidence of the car's excessive speed, also of failure to give warning and lack of control by the motorman, the question of defendant's negligence was one of fact; but the trial court should have entered judgment for the defendant on the ground of plaintiff's contributory negligence. It was a bright day, she was familiar with the locality and there was no other traffic near to divert her attention. To the east she had a clear view of the defendant's track for seventeen hundred feet and to the west, the direction from which the car came, for over nine hundred feet. The evidence for plaintiff was that, as she was driving east on the south (right-hand) side of the highway, she stopped before turning into Kemmerer Street and held out her left hand, then *579 turned into that street and, while crossing the track, was struck by the car which she had not seen; that as she came to the track the windows of the sedan were open and she looked in both directions, saw no car and did not stop after making the turn; that she was moving at the speed of from four to five miles an hour, and that the car approached at the speed of from forty to forty-five miles an hour. The latter was the estimate of a Mr. Kemmerer, although a great majority of the evidence indicated that the car was moving at a less rate of speed. It was, however, in a sparsely built up section and the car, taking people to a picnic, was doubtless moving rapidly; this is indicated by the evidence by the fact that the collision threw plaintiff and the sedan some twenty-five feet. There were two poles standing south of the railroad track, one sixty-four feet and the other one hundred and eighty-one feet west of Kemmerer Street, but not sufficiently near the track to obstruct plaintiff's vision; in fact, she makes no claim that they did, or that the sedan became stalled on the track.
Kemmerer testified he saw the forward wheels of the sedan cross the railroad track and the rear wheels enter upon it and at the same time saw the car coming at the next crossing, over three hundred feet away. This testimony is disproved by the physical facts. The sedan was moving forward and continued to do so until the collision and had its rear wheels been on the track when the car was three hundred feet away the accident could not have happened; neither could it under plaintiff's own testimony, for she said when the sedan was within three feet of the track the car was not within three hundred and fifty-eight feet of the crossing, as she looked west for that distance. Why she did or how she could so limit her vision, with the open track beyond, is not explained; but, assuming that she could and did, and, on the evidence most favorable to her, the car was moving forty-five miles an hour and the sedan four; hence, while the former was covering the three hundred and fifty-eight *580
feet the latter would go about one-eleventh of that distance, or approximately thirty-two feet, which would have cleared the track by many feet, but in fact it was struck before going one-half that distance. A court cannot accept as true that which the indisputable evidence demonstrates is false: Lessig v. Reading Transit Light Co.,
We have repeatedly said it is the inflexible duty of the traveler to look for an approaching street car immediately before entering upon the track: Clifford v. Phila. R. Transit Co.,
Furthermore, as quoted above, it is vain for a person to say he looked and listened when, in spite of what his eyes and ears must have told him, he walked or drove in front of an approaching train or car by which he was immediately struck: Hazlett v. Director Gen. of R. R.,
Plaintiff relies upon Knobeloch v. Pgh., H. B. N.C. Ry. Co.,
The judgment is reversed and is here entered for the defendant non obstante veredicto. *582